Opinion
November 10, 1986
Appeal from the Monroe County Court, Celli, J.
Present — Doerr, J.P., Boomer, Green, Pine and Balio, JJ.
Judgment unanimously modified on the law and as modified affirmed, in accordance with the following memorandum: Defendant appeals from a conviction of three counts of criminal possession of a forged instrument in the second degree, two counts of grand larceny in the third degree, and one count of attempted grand larceny in the third degree arising from three separate incidents involving defendant's alleged possession and cashing of forged checks.
Tamara Smith, the bank teller who cashed the check on which the first two counts of the indictment were based, did not testify at trial. We find that the prosecutor's improper remarks during summation that the defendant could have called her as a witness, and his suggestion that Tamara Smith's testimony would have corroborated the evidence presented by the People, constituted reversible error with respect to the convictions on those two counts (People v Mirenda, 23 N.Y.2d 439, 457; People v Grice, 100 A.D.2d 419, 422). The court's charge that defendant was not required to testify nor present witnesses, and that the jury could not consider that against him, was inadequate to cure the harm from the prosecutor's error (People v Murray, 64 A.D.2d 916). We do not agree with defendant's further argument that this burden shifting tainted the whole trial, since the jury acquitted the defendant on counts seven and eight of the indictment.
The court erred in refusing defendant's request for a missing witness charge with respect to Tamara Smith on the ground that the witness was equally available to the defense. The burden was on the prosecution to account for the bank teller's absence in order to avoid the charge (People v Dillard, 96 A.D.2d 112, 115), and the witness was not necessarily unavailable simply by reason of her presence in Utah (People v Jenkins, 41 N.Y.2d 307, 310, n 2, rearg denied 42 N.Y.2d 825; People v Jackson, 122 A.D.2d 566).
The convictions on counts one and two must be reversed, the sentences vacated, and those counts dismissed. The judgment is otherwise affirmed.